DCIT, Ernakulam V. M/s Carbo Chemicials Industries, Cochin

ITSSA 206/COCH/2005

• Counselvise Citation: [2012] 121 COUNSELVISE.COM (IT) 8120 (ITAT-COCHIN)
• Duration Of Justice: 6 year(s) 6 month(s) 30 day(s)
• Appeal Type: Income Tax (Search & Seizure) Appeal
• Pronouncement Date: 04-07-2012
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: DB
• Next Hearing Date: 04-07-2012
• Assessment Year: misc
• Appeal Filed On: 05-12-2005
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: S VIJAYAPRABHA
• Assessee Lawyers: C B M WARRIER
• Keywords: Block assessment

Judgement Text

1 I.T.(SS).A NOS 198, 206, 208 & 209/COCH/2005 IN THE INCOME TAX APPELLATE TRIBUNAL COCHIN BENCH, COCHIN BEFORE SHRI N.R.S. GANESAN (JM) AND SHRI B.R. BASKARA N(AM) I.T(SS)A NO. 198/COCH/2005 (BLOCK PERIOD A.Y 1989-90 TO 98-99 & BROKEN PERIOD UPTO 17-09-1998) DY.C.I.T., CIR.1(3) VS M/S K.C. THOMAS & CO ERNAKULAM (HOTEL SEA GATE) CARBO HOUSE OLD RAILWAY STATION ROAD KOCHI-18 PAN : NOT AVAILABLE (APPELLANT) (RESPONDENT) I.T(SS)A NO. 206/COCH/2005 (BLOCK PERIOD A.Y 1989-90 TO 98-99 & BROKEN PERIOD UPTO 23-09-1998) DY.C.I.T., CIR.1(3) VS M/S CARBO CHEMICAL INDUS TRIES ERNAKULAM CARBO HOUSE OLD RAILWAY STATION ROAD KOCHI-18 PAN : NOT AVAILABLE (APPELLANT) (RESPONDENT) I.T(SS)A NO. 208/COCH/2005 (BLOCK PERIOD A.Y 1989-90 TO 98-99 & BROKEN PERIOD UPTO 23-09-1998) DY.C.I.T., CIR.1(3) VS SHRI MOTTI CYRIAC ERNAKULAM PANAMKUZHACKAL HOUSE SRM ROAD, PACHALAM P.O KOCHI-682 012 PAN : NOT AVAILABLE (APPELLANT) (RESPONDENT) I.T(SS)A NO. 209/COCH/2005 (BLOCK PERIOD A.Y 1989-90 TO 98-99 & BROKEN PERIOD UPTO 23-09-1998) 2 I.T.(SS).A NOS 198, 206, 208 & 209/COCH/2005 DY.C.I.T., CIR.1(3) VS M/S CARBO COLOUR LTD ERNAKULAM CARBO HOUSE OLD RAILWAY STATION ROAD KOCHI-18 PAN : NOT AVAILABLE (APPELLANT) (RESPONDENT) REVENUE BY : SMT. S VIJAYAPRABHA ASSESSEE BY : SHRI CBM WARRIER DATE OF HEARING : 04-07-2012 DATE OF PRONOUNCEMENT : 04-07-2012 O R D E R PER N.R.S. GANESAN (JM) ALL THE FOUR APPEALS OF THE REVENUE ARE DIRECTED A GAINST THE INDEPENDENT ORDERS OF COMMISSIONER OF INCOME-TAX(A)-II, KOCHI DAT ED 17-08-2005 / 01-09- 2005 FOR THE BLOCK PERIOD A.Y 89-90 TO 98-99 & BROKEN P ERIOD UPTO 17 / 23-09- 1998. 2. SMT. VIJAYAPRABHA, THE LD.DR SUBMITTED THAT THE COMMISSIONER OF INCOME- TAX(A) DELETED THE ADDITION MADE BY THE ASSESSING O FFICER ON THE GROUND THAT THERE WAS NO SEARCH WARRANT IN THE NAME OF THE ASSE SSEES AND THE INCRIMINATING MATERIAL DO NOT RELATE TO THE PRESENT ASSESSEES. T HEREFORE, THE BLOCK ASSESSMENTS FRAMED ARE BAD IN LAW. ACCORDING TO TH E LD.REPRESENTATIVE, SEARCH WARRANTS WERE, IN FACT, ISSUED IN FAVOUR OF THE ASS ESSEES AND INCRIMINATING MATERIALS WERE ALSO FOUND. THEREFORE, THE COMMISSI ONER OF INCOME-TAX(A) IS NOT CORRECT IN DELETING THE ADDITION MADE BY THE ASSESS ING OFFICER. ON A QUERY FROM 3 I.T.(SS).A NOS 198, 206, 208 & 209/COCH/2005 THE BENCH WHY THE COPIES OF THE SEARCH WARRANTS AND OTHER SEIZED MATERIALS WERE NOT PRODUCED BEFORE THIS TRIBUNAL, THE LD.DR POINTE D OUT THAT IN SPITE OF REPEATED REQUESTS THE ASSESSING OFFICER HAS NOT PRODUCED THE SAME. THEREFORE, IT WAS NOT PRODUCED BEFORE THIS TRIBUNAL. 3. WE HEARD, SHRI CBM WARRIER, THE LD.REPRESENTATIV E FOR THE ASSESSEE. THE LD.REPRESENTATIVE FOR THE ASSESSEE SUBMITTED THAT A N IDENTICAL ISSUE CAME UP BEFORE THE KERALA HIGH COURT IN ITA NO.76 OF 2010, 1 168, 684 & 777 OF 2009. THE HIGH COURT BY JUDGMENT DATED 22 ND OCTOBER, 2010 REMITTED BACK THE MATTER TO THE FILE OF THE COMMISSIONER OF INCOME-TAX(A) TO DE CIDE THE SAME AFRESH. ACCORDING TO THE LD.REPRESENTATIVE, THE JUDGMENT WA S PASSED BY HIGH COURT IN THE CASE OF SHRI JOSE CYRIAC, WHO IS ALSO ONE OF THE DI RECTORS AND PARTNER IN SEVERAL CASES AS THAT OF THE PRESENT ASSESSEES. THEREFORE, ACCORDING TO THE LD.REPRESENTATIVE, THE MATTER MAY BE REMITTED BACK T O THE FILE OF THE COMMISSIONER OF INCOME-TAX(A) TO RECONSIDER THE SAME AFRESH IN THE LIGHT OF THE JUDGMENT OF THE KERALA HIGH COURT. 4. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS ON EITH ER SIDE AND ALSO PERUSED THE MATERIAL AVAILABLE ON RECORD. AS RIGHTLY SUBMI TTED BY THE LD.REPRESENTATIVE FOR THE ASSESSEE, IN THE CASE OF SHRI JOSE CYRIAC, THE HIGH COURT BY JUDGMENT DATED 22-10-2010 HAS REMITTED BACK THE MATTER TO THE FILE OF THE COMMISSIONER OF INCOME-TAX(A) FOR RECONSIDERATION. ADMITTEDLY, THE ISSUE ARISING IN THE PRESENT APPEALS IS ALSO IDENTICAL TO THAT IN THE CASE OF SH RI JOSE CYRIAC. MOREOVER, THE DEPARTMENT HAS NOT PRODUCED THE SEIZED MATERIALS AN D THE SEARCH WARRANTS BEFORE THIS TRIBUNAL EVEN THOUGH THERE WAS A SPECIF IC DIRECTION TO THE DR TO PRODUCE THE SAME. IN THESE FACTUAL CIRCUMSTANCES, THIS TRIBUNAL IS OF THE OPINION THAT THE MATTER NEEDS TO BE RECONSIDERED BY THE COM MISSIONER OF INCOME-TAX(A) 4 I.T.(SS).A NOS 198, 206, 208 & 209/COCH/2005 IN THE LIGHT OF THE DIRECTION ISSUED BY THE HIGH CO URT IN THE CASE OF SHRI JOSE CYRIAC. ACCORDINGLY, THE ORDERS OF THE FIRST APPEL LATE AUTHORITY ARE SET ASIDE AND THE ISSUE IS REMITTED BACK TO HIS FILE. THE COMMISS IONER OF INCOME-TAX(A) SHALL RECONSIDER THE ISSUE INVOLVED IN THESE APPEALS IN T HE LIGHT OF DIRECTION ISSUED BY THE HIGH COURT IN THE CASE OF JOSE CYRIAC IN ITA NO .76 OF 2010, 1168, 684 & 777 OF 2009 JUDGMENT DATED 22-10-2010 AND THEREAFTER DECIDE THE SAME IN ACCORDANCE WITH LAW AFTER PROVIDING OPPORTUNITY OF HEARING TO THE ASSESSEE. 5. IN THE RESULT, ALL THE FOUR APPEALS OF THE DEPAR TMENT ARE ALLOWED FOR STATISTICAL PURPOSE. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 04 TH JULY, 2012. SD/- SD/- (B.R. BASKARAN) (N.R.S. GANESAN) ACCOUNTANT MEMBER JUDICIAL MEMBER COCHIN, DT : 04 TH JULY, 2012 PK/- COPY TO: 1. THE APPELLANT 2. THE RESPONDENT 3. THE COMMISSIONER OF INCOME-TAX 4. THE COMMISSIONER OF INCOME-TAX(A) 5. THE DR (TRUE COPY) BY ORDER ASSTT. REGISTRAR, INCOME-TAX APPELLATE TRIBUNAL, COCHIN BENCH